Tuesday, March 28, 2017

Functionalism and Synthetic History

Functionalism has any number of academic meanings. In anthropology, it references some of the early ethnographic work I mentioned in my last post–carried out with the aspiration to entirely map the inter-relationships of a bounded social space. But today I am using the term much more narrowly to describe the manner in which the inquiry which led to my first book unfolded.

My turn from ethnography to history was driven by an attempt to answer a very specific question about the field commonly called law and development–a short hand in the United States for varied attempts to mold foreign legal systems through the export of American law. In particular, the field has been characterized by many as passing through cycles of optimism and failure, with roaming geographical foci over the last several decades. The ever-present, but in my mind unanswered question, in post-mortems of these efforts is why they persisted when their putative justification, normatively desirable transformation of said foreign legal systems, never materialized when subjected to critical scrutiny.

For my work in China, my initial fieldwork did not provide any satisfactory answers to this question, and seemed to only recapitulate earlier work about the micro and macro-deficits in the technocratic administration of these programs. I did encounter several reflective practitioners whose complex relationship to their work made me puzzle over the larger cultural and political ideologies in which they felt trapped.

Out of simple frustration, I started trying to trace precedents for law and development work in China. Suddenly, I started to make all number of surprising discoveries. Most striking was that there were historical precedents to American efforts to impact Chinese law long before 1978, and well before the consensus starting point for law and development’s origins in the 1950s.

This is when I first unearthed Roscoe Pound’s time as an adviser to the Guomindang government in the late 1940s, Frank Goodnow’s infamous involvement with Chinese constitutional processes in the 1910s, and Warren Seavey’s tenure teaching at a missionary law school in Tianjin in the 1900s. I found influential Harvard President Charles Eliot writing about property rights after a mission to China for the Carnegie Endowment for International Peace, and issues of the Harvard Law Review contemplating American law as a colonial science in the 1890s. I even found commentaries on Chinese law included in the very first turn of the century volumes of the still popular Green Bag publication.

But beyond these higher-profile actors, I found prior to 1949 all number of smaller engagements that portrayed a seemingly forgotten period of intense interest in Chinese law by the American legal profession, and then only a subset of a broad popular fascination. Alfred Aldridge's The Dragon and the Eagle and John Tchen’s New York Before Chinatown were two early discoveries that made me realize how shallow my preconceptions were about the depth and complexity of Sino-American history.

Every decade I pushed into led to ever-surprising findings until I arrived in the Revolutionary era to find a complete reversal of the law and development ethos in dialogues about Chinese law among the Founders. Many Founders were hungry to learn as much as they could about China to inform debates about America’s future legal institutions – from Thomas Jefferson’s deep interest in the Chinese service exam to Benjamin Franklin’s personal obsession with Confucian political philosophy.

Here is where I came to appreciate the value of what I will now term synthetic history. As I ranged well beyond the terrain of my own graduate training, I had to work to contextualize these discrete findings. It took years to fully discover what sources actors in these eras were drawing on to form their conclusions about Chinese law, but also the social setting in which these attitudes functioned. Very often my work in law would be a variation of existing scholarship in another field, or engage developments in foreign relations tied to my legal discoveries. I realized quickly that my background as an anthropologist informed this desire for synthesis as I carried the holistic assumption that law was always intimately tied to these other social fields.

The other major driving factor in my desire to synthesize my findings with other fields of inquiry was again my functionalist orientation. If my desire to explain the present cycles of optimism and failure which law and development exhibited drove me to map out these historical precedents, and their reversal in other eras, this still did not explain why these reversals happened or why these contemporary cycles were so persistent.

In many ways this was my critical break from many existing legal histories which touched on these issues from a perspective from within the law. Certainly, the professionalization of the American law and notions of legal science at the turn of the 20th century played a key role (and, as I will discuss in my last post, shapes my next book project). But, ultimately, it was diplomatic and religious history which ended up being the major fields I engaged with to synthesize a proper answer to the question I was seeking to answer.

Anecdotally, the most profound experience I had in this process was reading missionary publications from the late 19th century. I had found my way to these writings because I had quickly discovered that almost all sources and ideas about Chinese law in the United States, and Europe historically, came from missionaries. And as I pushed deeper into their history, I found that all of early legal reformers in China were missionaries, often trained in both theology and law. And in the missionary debates on how to effectively proselytize in China was revealed a deeply self-critical and technically engaged discourse which fit the contours of contemporary law and development scholarship.

I very specifically remember sitting in the library of Berkeley's Graduate Theological Union and reading missionary journals right after I had finished taking notes on a comprehensive review of USAID legal reform projects written by Harry Hansen and Gary Blair. The conceptual parallels were impossible to miss. Contemporary debates about the specific content of the “rule of law,” as opposed to simply US law, were consonant with missionary debates about the specific content of Christianity, as opposed to simply American Christianity. Issues of local ownership and participation, melded with anxieties over the actual value American expertise, were equally present. The list went on.

Over time, this would lead me to conclude that very notion of “development” was conceptually pioneered and molded by the missionary movement. And it was their influence that gave the imprint of moral humanitarianism that would help render law and development work so resistant to empirical feedback, while working itself into professional identity of American lawyers, as well as popular notions of American international purpose.

I was then drawn to scholars working at the intersection of religious and diplomatic history, some well-known and some regrettably lost to contemporary discourse. I found scholars railing at diplomatic history for ignoring the thorough penetration of missionaries in the first institutions of American internationalism. No book was more transformative for my project in this regard than Joseph Grabill's Protestant Diplomacy and the Far East. One truly fortunate discovery was Andrew Preston’s Sword of the Spirit, Shield of the Faith, which forcefully detailed the central role of religious actors and attitudes through the entirety of American foreign policy history. I was also lucky to be introduced to Anna Su’s project on the specific American export of notions of religious freedom abroad, which productively grappled with this same synthesis, and led to her recent book, Exporting Freedom.
I also met those who appreciated how much law and lawyers played a role in these very same histories of American internationalism, such as Benjamin Coates’ work which would become Legalist Empire and Jonathan Zasloff’s work on lawyers in early American foreign policy.

In some ways my work resonated with these works, and in others a lack of resonance stimulated further research. As I will discuss later, the rising dominance of the notion of “legal empire” which has inspired a great deal of novel work in legal history was a poor fit for Sino-American relations.

None of this research and drive to synthesize these "other" histories was what I expected when I first set out to explore my ethnographic frustrations during graduate school. I do not think any of it would have happened if I had built up the project as a more traditional dissertation project. And, in all honesty, it took me many years to sort it all out and I was exceedingly fortunate to have the time to do so. Futility was not a direct rewrite of my dissertation, but a de novo effort to narrow all of these varied discoveries into a coherent narrative and argument.

Throughout this process I came to see how barriers to scholarly innovation can develop both between and within disciplines. Even after Preston’s encyclopedic work, traditional diplomatic history still wrestles with the elitism of its perspectives and sources, much like traditional legal history. The role of religious motivations and thought is still at the fringes of legal scholarship. If my functionalist orientation placed me at danger of overreach, it also freed me to simply follow the sources where they went, and forced me to catch up on making sense of them beyond my own initial competencies after the fact.

All of this is then complicated again when working not just between fields and sub-fields, but between legal regimes and cultures in transnational contexts. Herein, I will return to this issue of competencies in my next post, “The Challenges of Comparative Law and Transnational History.” 

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